Kenney v. Barry
| Decision Date | 04 October 1932 |
| Citation | 162 A. 774 |
| Parties | KENNEY v. BARRY et al. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Strafford County; Scammon, Judge.
Action by V. W. Kenney, general agent, against Jeremiah Barry and others, on a bond to recover from the defendants as sureties certain sums of money advanced to Jerry J. Carroll, principal, for living expenses while Carroll was acting as an insurance agent for the plaintiff. The defendants' motion for nonsuit was granted subject to the plaintiff's exceptions. Case transferred from trial court, on plaintiff's exceptions.
Exceptions overruled.
Conrad E. Snow, of Rochester, for plaintiff.
Hughes & Burns, of Dover, for defendants.
On June 16, 1929, the plaintiff, as general agent of the Connecticut Mutual Life Insurance Company, entered into an agreement with Jerry J. Carroll, by the terms of which Carroll was to solicit and procure applications for life insurance in Dover. It was a condition of the bond that Carroll should "pay and discharge all his indebtedness to said General Agent as provided under the aforesaid contract, and any supplemental agreements thereto." The contract required Carroll "to account according to the first party's instructions for that purpose, for all policies, premiums and other receipts, vouchers, drafts, moneys, and valuable papers received by the second party from the first party or from any person for the first party's account."
"The expression * * * to account for * * * stands in opposition to the right of appropriation to one's own use and benefit." Thomas v. Mahan, 4 Greenl. (4 Me.) 513, 520; United States v. Rehwald (D. C.) 44 F.(2d) 663, 664.
For about eight months after the execution of the contract the plaintiff advanced to Carroll approximately $30 a week, and this action is brought to recover the balance due the plaintiff; credit having been given Carroll for the commissions earned. According to the plaintiff's statement, these advances were made in order that Carroll might have funds to cover living expenses until such time as his commissions would adequately provide for him. Assuming this to be true, the funds were not moneys to be accounted for within the meaning of the contract. Carroll received the payments personally and not in his capacity as agent. He therefore became the plaintiff's debtor and was not a trustee of the funds.
Since the bond is expressly conditioned upon fulfillment of the contract, the two instruments are to be construed together. Brown v. Whipple, 58 N. H. 229, 231. The bond covers only indebtedness arising under the contract. The contract contains no express provision relating to advances, and the defendants are not liable for Carroll's failure to perform any duty not fairly within its terms....
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... ... to your contract with [the state]." Held: As used in this instance, "supplement" extended or made applicable the original contract.); Kenney v. Barry (1932), 86 N.H ... 35, 162 A. 774 (phrase "supplementary agreements thereto" means agreements germane to the original contract). See ... ...
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